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“Right to life and liberty must be read into every provision that prescribes arrest of a person. That is the mandate for the Supreme Court and that was the approach followed by us while delivering the (March 20) judgment. Enforcement of law has to be fair and just and cardinality of Article 21 rights cannot be denied even by Parliament,” a bench of Justices Adarsh Goel and U U Lalit said.
The court’s remarks are significant in the light of reports that the government is preparing to bring an ordinance in case the SC does not restore the mandatory arrest provision in a case registered under the Act – an indication that it may take a dim view of its order being overturned either by an ordinance or through a legislative device like placing the law under the 9th schedule.
Attorney general KK Venugopal, while seeking a review of the order, told the bench that plenary power given to the SC under Article 142 of the Constitution was meant to ensure due process of law, and not to overturn law. “Powers of the Supreme Court cannot be construed to mean that the court can supplant provisions of law. Article 142 powers, even in its widest amplitude, cannot be used to substitute law or to be exercised contrary to existing provisions of law,” he said, faulting the judgment as an attempt to substitute Parliament’s intent, as reflected in the SC/ST Act, with the SC’s view.
The judgment introduced the anticipatory bail provision, absent in the SC/ST Act. It also said no arrest could be made without a senior police officer carrying out a preliminary inquiry to establish the veracity of a complaint alleging that a derogatory reference was made against a person belonging to the SC or ST community.
Under the original law, a mere complaint of a derogatory reference, a cognisable offence under the Act, was enough for the accused to be arrested. The SC also introduced prior sanction from appointing authority, in case of a public servant, and from the senior superintendent of police, in case of a commoner, for arrests under the Act.
The bench said on Wednesday, “The Centre cannot make any grievance against the fair procedure that we have provided for effecting arrest of a person under the SC/ST Act. We (the SC) will not allow arrest of an innocent even if Parliament makes such a law. That is the mandate for the Supreme Court. If an innocent person can be arrested or put behind bars, then we are not living in a civilised society.”
Realising the difficult nature of the task, Venugopal and additional solicitor general Tushar Mehta readily accepted the bench’s offer for a detailed hearing in July when all parties would get adequate time to put forth their views on the judgment.
The SC’s decision to dilute the arrest provision led to protests in several parts of the country by Dalit groups on April 2 in which nine persons died. This forced the Centre to urgently move a petition seeking review of the judgment.